Supplementary Memorandum by the Department
for Environment, Food and Rural Affairs

1. Further to memoranda from the Department for
Environment, Food and Rural Affairs reported on in the 12th and
23rd Reports of the Committee, this supplementary memorandum covers
a draft Government amendment to amend the Water Industry Act 1991
to give the Secretary of State power to make regulations to impose
a duty on sewerage undertakers to adopt private sewers under defined
circumstances.

PRIVATE
SEWERS

2. The relevant existing law relating to sewers
is contained in part IV of the Water Industry Act 1991. These
provisions place a general duty on sewerage undertakers to provide,
improve and maintain a system of public sewers. The Act gives
sewerage undertakers a discretionary power to adopt new sewers
or sewerage disposal works. This duty has resulted in a mixed
approach and does not apply to lateral drains (the part of the
drain which runs from the curtilage of the premises to the sewer).

3. Since 1991 a Protocol for the construction
of new sewers has been introduced. This means that all new sewers
must now be built to an agreed standard which cannot preclude
them from being adopted on the grounds of inadequate design or
unacceptable construction. This measure has addressed the problem
of new private sewers.

4. The Bill as brought from the House of Lords
also includes clauses on the requisition and adoption of lateral
drains to bring them into line with the existing provisions on
private sewers. Clause 98 allows for sewerage undertakers to take
responsibility for the repair and maintenance of all new lateral
drains.

5. However, this still only goes some way to
addressing concerns as it is estimated that about 50% of domestic
properties are connected to existing private sewers in one form
or another. Many householders are unaware that they have a private
sewer until a problem occurs and they are faced with what can
sometimes be considerable cost. In the event of a problem there
can be difficulties establishing ownership, especially when ownership
is shared, and households are often unwilling to accept responsibility
or are unable to afford the high cost of repair. Sewerage flooding
from private sewers is also a major concern.

6. Defra published a consultation paper on existing
private sewers and drains on 1 July. It set out the problems identified
and sought views on proposed solutions. An early analysis of the
responses indicates that there is broad support for private sewer
ownership passing to sewerage undertakers who are seen as best
placed to take on the responsibility.

7. This clause provides for the Secretary of
State to make regulations to place a duty on a sewerage undertaker
to exercise its existing powers, under Section 102 of the Water
Industry Act 1991, to adopt private sewers.

8. A delegated power is sought to impose a duty
on a sewerage undertaker as and when an adoption scheme is made
by the Secretary of State.

9. The power gives the Secretary of State a necessary
degree of flexibility. Until we have analysed responses to the
Department's consultation on private sewers it is not possible
to say to what extent the Secretary of State will need to take
action under this clause.

10. The amendment allows the Welsh Assembly Government
to make corresponding regulations for undertakers wholly or mainly
in Wales.

SECTION
105B
NEW
CLAUSE
- ADOPTION
SCHEMES:
APPEALS

Power conferred on: Secretary of State

Power exercisable by: Regulation

Parliamentary procedure: Negative

11. This clause provides an appeal mechanism
for owners of sewers to make appeals in relation to the scheme.

12. The clause will provide for grounds of appeal,
and also allow for regulations to add further grounds of appeal.

13. It is envisaged that the clause will also
provide remedies on appeals, and also allow for regulations to
add further remedies.

14. It is envisaged that regulations will also
set out further considerations and make further provision in connection
with appeals under the new clause.

15. A delegated power is sought in order to provide
for an appropriate degree of flexibility in the balance of policy
aims that may conflict with serious individual detriment.

16. The power gives the Secretary of State a
necessary degree of flexibility in relation to the mechanics of
appeal.

17. The amendment allows the Welsh Assembly Government
to make corresponding regulations for undertakers wholly or mainly
in Wales.